BILL ANALYSIS Ó
AB 1159
Page 1
( Without Reference to File )
CONCURRENCE IN SENATE AMENDMENTS
AB 1159 (Gonzalez)
As Amended September 11, 2013
2/3 vote. Urgency
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|ASSEMBLY: | |(May 9, 2013) |SENATE: |38-0 |(September 12, |
| | | | | |2013) |
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(vote not relevant)
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|COMMITTEE VOTE: |9-0 |(September 12, |RECOMMENDATION: |concur |
|(JUD.) | |2013) | | |
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Original Committee Reference: ED.
SUMMARY : Imposes various restrictions and obligations on persons
who offer services related to comprehensive immigration reform.
The Senate amendments delete the Assembly version of this bill, and
instead:
1)Provide that it is unlawful for an attorney to demand or accept
advance payment of any funds from a person for immigration reform
act services before the enactment of an immigration reform act.
Any funds received after the effective date of this bill, but,
before the enactment of an immigration reform act must be
promptly refunded to the client, as specified.
2)Provide that:
a) If an attorney providing immigration reform act services
accepted funds prior to the effective date of this bill, and
the services provided in connection with payment of those
funds were rendered, the attorney shall promptly provide the
client with a statement of accounting describing services
rendered; and
b) Any funds received before the effective date of this bill
for which immigration reform act services were not rendered
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prior to the effective date, shall be either refunded to the
client or shall be deposited in a client trust account. If
the attorney elects to deposit funds in a client trust
account, he or she shall provide a specified written notice to
the client, in English and the client's native language.
3)Provide that when a contract for legal services is required to be
in writing, as specified, an attorney providing immigration
reform act services shall provide a written notice informing the
client where he or she may report complaints.
4)Require that notice to be attached or incorporated into any
written contract for immigration reform act services, and,
require the notice to be signed by both the attorney and client
if it is attached to a written contract. This bill would require
the notice to be in English and in one of the languages
translated by the State Bar, if the contract for immigration
reform act services was negotiated in one of those languages.
5)Require the State Bar to provide the form of the notice, post the
form and translations of the form on its Internet Web site, and
to translate the form into Spanish, Chinese, Tagalog, Vietnamese,
Korean, Armenian, Persian, Japanese, Russian, Hindi, Arabic,
French, Punjabi, Portuguese, Mon-Khmer, Hmong, Thai, and
Gujarati. This bill would specify that an attorney who meets
specified criteria shall be responsible for adding and
translating the name of, toll-free number of, and information on
the Internet Web site for, the bar or court in which he or she is
admitted to practice law.
6)Provide that failure to comply with the notice and translation
requirement renders the contract voidable at the option of the
client, and the attorney shall, upon the contract being voided,
be entitled to collect a reasonable fee.
7)Make the above notice and translation provision operative when
the State Bar posts on its Internet Web site the required form
and translations, and, require the State Bar to post the form and
translations as soon as practicable but no later than 45 days
after the effective date of the bill.
8)Define "immigration reform act" as any pending or future act of
Congress that is enacted after the effective date of this section
but before January 1, 2017, including but not limited to the
"Border Security, Economic Opportunity, and Immigration
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Modernization Act" (S. 744, 2013), as specified. This bill would
require the State Bar to announce and post on its Internet Web
site when an immigration reform act has been enacted.
9)Define immigration reform act services as services offered in
connection with an immigration reform act that are necessary in
the preparation of an application and other related initial
processes in order for an undocumented immigrant, as specified,
to attain lawful status under the immigration reform act.
10)Provide that it is a violation of the existing prohibition on
non-attorneys advertising or holding themselves out as entitled
to practice law for any person who is not an attorney to
literally translate from English into another language, in any
document, any words or titles, including "notary public,"
"notary," "licensed," "attorney," or "lawyer" that imply the
person is an attorney, as specified. This bill would provide
that a person who violates the translation prohibition is liable
for a civil penalty not to exceed $1,000, as specified.
11)Provide that, in a civil action brought by the State Bar, the
civil penalty collected shall be paid to the State Bar, as
specified and require the Board of Trustees of the State Bar to
annually report any collection and expenditure of funds for the
preceding calendar year to the Assembly and Senate Committees on
Judiciary, as specified.
12)With respect to immigration consultants:
a) Increases the amount of the bond to $100,000, effective
July 1, 2014;
b) Requires each service to be performed to be itemized with
an explanation of the purpose and process of the service, and
make corresponding changes;
c) Revises the existing exemptions for non-profit tax exempt
corporations who help client complete application forms by
clarifying that only a nominal fee may be charged;
d) Requires an immigration consultant who provides immigration
reform act services to establish and deposit into a client
trust account any funds received from a client prior to
performing those services;
e) Allows an immigration consultant providing immigration
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reform act services for the client to withdraw funds received
from that client: i) after completing one or more of the
itemized services, as specified; or ii) after completing one
or more of the documents listed, as specified;
f) Prohibits an immigration consultant from demanding or
accepting advance payment of any funds from a person for
immigration reform act services before the enactment of an
immigration reform act;
g) Provides that funds received after the effective date of
this bill but before enactment of an immigration reform act
must be refunded to the client;
h) Provides that for funds received before the effective date
of the bill: i) the consultant must provide the client with an
accounting for services that were rendered; and ii) any funds
received for which services have not yet been rendered must be
refunded or deposited into a client trust account, as
specified;
i) States that a person who violates the above restrictions on
advance fees shall be subject to a civil penalty not to exceed
$1,000, as specified, and require a court to grant a
prevailing plaintiff reasonable attorney's fees and costs; and
j) Expressly prohibits the literal translation of the phrase
"notary public" into Spanish as "notario public" or "notario."
13)State that a violation of the existing prohibition on
translating terms that imply the person is an attorney is a
violation of the State Bar Act's prohibition on non-attorney's
holding themselves out to be authorized to practice law. In
addition to the remedies and penalties under the Immigration
Consultants Act (ICA), this bill provides that a person who
violates the translation prohibition would be subject to a civil
penalty of up to $1,000 per day for each violation, as specified.
FISCAL EFFECT : According to the Senate Appropriations Committee:
1)Minor costs in fiscal year (FY) 2013-14 of less than $20,000
(Special Fund*) to the Secretary of State (SOS) for form and Web
site changes, noticing, and postage. Additional costs in FY
2014-15 of approximately $35,000 (Special Fund*) to accommodate
the increased workload associated with bond processing and cease
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and desist notices and orders in response to the surety bond
increase for immigration consultants.
2)Minor, absorbable one-time costs to the Department of Consumer
Affairs (DCA) to revise regulations related to written contract
requirements for immigration consultants.
3)One-time costs to the State Bar to create a template contract
form and necessary language translations. All costs to be offset
by existing fee revenue.
4)Non-reimbursable local costs for enforcement offset to a degree
by fine revenue for violations of various prohibitions specified
in the bill.
5)Potential minor revenue increases (General Fund) for civil
penalty collections to the extent additional civil actions are
brought by the Attorney General.
*Business Fees Fund
COMMENTS : In support of the bill, the author states:
AB 1159 is an important consumer protection measure that
will immediately assist in helping to protect the
vulnerable community that will be seeking assistance
under comprehensive immigration reform.
Immigration fraud has already begun. A few bad actors
are already making guarantees they cannot fulfill, and
are already taking fees for services they cannot possibly
provide until the federal government has acted.
If immigration reform passes, it is estimated that 11
million nationwide will be impacted. Of that 11 million,
approximately 2.55 million live in California. No one
knows how many of the 2.55 million will be victimized by
fraud, but we do know the risk of fraud is very high
since the fraud is already occurring. . . AB 1159 is
designed to significantly help reduce fraud and to
provide appropriate enforcement tools to recover against
those individuals who do engage in fraudulent behavior.
AB 1159 is a reasonable approach to ensure consumer
protection for immigrants. By putting in place these
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safeguards now, the bill will help prevent the fraud at
the front end, avoiding more significant repercussions
down the road.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN:
0002868